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Burden of Proof

Election 2000: The U.S. Supreme Court Speaks; Gore Expected to Bow Out

Aired December 13, 2000 - 12:30 p.m. ET


GRETA VAN SUSTEREN, CO-HOST: Today on BURDEN OF PROOF: Last night the U.S. Supreme Court spoke. Tonight, we hear from Al Gore.


UNIDENTIFIED FEMALE: We're at that time, where it's time to be graceful, bow your head, and say, OK, this one I lost.

UNIDENTIFIED MALE: I hope that people will respect the decision of the United States Supreme Court, recognize the caliber and the integrity of the institution.

UNIDENTIFIED MALE: I just want some finality to it, either way, Bush or Gore, let's get it over with, and get on with the business of America.

UNIDENTIFIED MALE: The Supreme Court has the final word in the situation. While I think they are wrong, I do unfortunately think it is time for him to say let's get on with business.

UNIDENTIFIED FEMALE: I believe that we will come together and rally behind Bush.


ANNOUNCER: This is BURDEN OF PROOF with Roger Cossack and Greta Van Susteren.

VAN SUSTEREN: Hello, and welcome to this special edition of BURDEN OF PROOF. And a welcome to our international viewers.

This morning, Vice President Al Gore told his recount committee in Florida to suspend its activities. According to a statement from campaign chairman William Daley, Gore will deliver an address to the nation this evening at 9:00 Eastern time.

ROGER COSSACK, CO-HOST: All this in the wake of a historic ruling from the U.S. Supreme Court. In a decision last night, the high court overturned a Florida Supreme Court ruling on manual recounts. The U.S. Supreme Court said the count was unconstitutional. And there was no fair standard for counting the so-called undervotes.

Joining us today from Atlanta is Teresa Wynn Roseborough, a former clerk for Supreme Court Justice John Paul Stevens.

VAN SUSTEREN: From Miami, we're joined by Gerald Kogan, who is a former chief justice of the Florida Supreme Court. And here in Washington, Juhie Veejay Vargeeya (ph); Daniel Meron, a former clerk for Supreme Court Justice Anthony Kennedy; and Anita Patankar (ph). And in our back, Erin Maloney (ph) and Christopher Bill (ph).

Teresa, let me go first to you. I want to go over some basics. This opinion starts with what is called a per curiam opinion. What does a per curiam opinion mean when we then have subsequent opinions and then dissent?

TERESA WYNN ROSEBOROUGH, FMR. SUPREME COURT CLERK FOR JUSTICE JOHN PAUL STEVENS: The per curiam just means of the court, or by the court, so without saying which specific justices joined it, it announces the view of the court, and it is often a tool the court uses either in very, very simple cases, where there's no dissent, or in case where it's important there be a single opinion expressing the viewpoint of the majority of the court.

VAN SUSTEREN: Well, are we to take it then that there were at least five people that signed on to the per curiam, and if so, why not just up front say who is onboard?

ROSEBOROUGH: Well, I think the court wanted it to be the case that there was a majority opinion that everybody could look to and know with certainty that it was the view of the court, or the majority of the court. And so even though it was a 5-4 decision ultimately, they felt that a per curiam was the best way to assure people, based on the multitude of opinions before us -- I think I have six in front of me -- that there is a single opinion that represents the opinion of the court.

VAN SUSTEREN: Dan, for some reason I think that's sort of funny that we don't know who vote on that part.

ROSEBOROUGH: Well, we do know -- there is a sense of their own evidence of who voted for the per curiam opinion.

COSSACK: Justice Kogan, this decision was based on an interesting issue as far as I am concerned. The majority said that the Florida Supreme Court had said that the contest must end by December 12th. But it never held that in any opinion, and as far as I could see, that was nothing but dicta that was thrown in -- dicta meaning other things, rather than the holding, explanation, perhaps, but not the holding in any of its opinions, the Harris opinions that it had to be over by December 12th. How do you think the Florida Supreme Court, therefore, will react to being quoted for something that it never held?

GERALD KOGAN, FORMER CHIEF JUSTICE, FLORIDA SUPREME COURT: Well, I think, Roger, it is all going to depends whether or not the Gore campaign proceeds with additional filings, or different requests of the Florida Supreme Court. That question, based upon what I hear this morning about the Gore campaign suspending their operations, in regards to filing anything to the Florida Supreme Court, will probably result in the Florida Supreme Court never responding to that.

VAN SUSTEREN: Dan, before I even get to the substance, I like sort of looking at the logistics and the procedure. Two dissent, one by Justice Breyer, and one by Justice Ginsburg, hers was rather sharp in tone. He signed his -- Justice Breyer -- "I respectfully dissent." She just says, "I dissent." Do we read anything into that?

DANIEL MERON, FMR. SUPREME COURT CLERK FOR JUSTICE ANTHONY KENNEDY: Actually, I don't think we should. It is actually Justice Ginsburg's style to always say, "I dissent." In my experience, she does not says, "I respectfully dissent." It is just a difference of style, I don't think you can read anything into it.

VAN SUSTEREN: Teresa, do you agree that she dissents, and she doesn't respectfully dissent, that is meaningless?

ROSEBOROUGH: Yes, I don't think she was intending to signal any different view, with respect to a dissent. It is obvious she disagrees with the majority's analysis here, but I don't think she was intending to say that this is a sharper disagreement with the majority than she might have in some other case. And in fact, I her tone, she makes it clear that her dispute with the majority here has to do with their failure to give what she thinks was the proper deference to the Florida courts, not that she might not have made the same decision, had she not understand their role to be one of according deference to state courts.

COSSACK: Dan, you clerked for Justice Kennedy, and Justice Kennedy and Justice O'Connor are the two names that we do not see appearing in this opinion, and yet, they were perhaps the two most sought after justices, perhaps by both sides. Apparently the majority got them. Why is it -- why was there a per curiam opinion written, and why then didn't we see Justice O'Connor and Justice Kennedy write a 5-4 opinion?

MERON: While you don't see their names on these opinions, I think their fingerprints are all over the per curiam I think in two respects, not only stylistically, I think you can see a lot of their writing in the opinion. But I think really, the heart of their approach here, I think they both were looking for a statesperson-like way of getting consensus, of trying not to write the most divisive opinion that could potentially be written here. I think, at the end of the day, they both felt uncomfortable joining an opinion such as the one that the Chief Justice Rehnquist would have I think preferred to write, which would have really taken issue with the Florida Supreme Court's interpretation of Florida law. I think they rather -- what they want us to do is get a consensus, and really seven justices did agree.

COSSACK: Then why not sign their names?

VAN SUSTEREN: That's my problem, put your name on this. I mean, usually in a per curiam it is everybody, for sure, at least typically. This is per curiam, but we are not going to say exactly who.

MERON: Well, it is kind of symbolic. It is kind of the same reason...

VAN SUSTEREN: Symbolic, but this is a little bit deceptive.

COSSACK: Symbolic of what?

MERON: Well, it is symbolic, the same reason justices wear robes, it is kind of you want to disembody your individuality from the opinion. And sometimes, in the more controversial opinions, what the court will do, is issue it under the name of the court, five people join it, but it is not the voice of any one person.

COSSACK: There's not a lot that we agree on, but this is one that absolutely is like sticking a needle in both of us, this hidden mystery drives us nuts.

VAN SUSTEREN: This is like the mystery five.

Let me go to Justice Kogan.

Kogan, Roger and I are wrong for sort of like seizing upon we have the mystery five in this per curiam?

KOGAN: Well, you know, ordinarily, if I were in a per curiam opinion, but I was not happy with it, and I only agreed with the bottom line, I usually would guy ahead and say, I concur in the result only, and that way people understand that I may not concur with everything in the majority opinion, but I concur with the bottom line.

VAN SUSTEREN: And that's the way it is typically done, Justice Kogan. I got to tell you that I think it is rather extraordinary that on such an important decision, they don't step up to the plate and say: This is what I think, it is my job, I get to think this way.

COSSACK: It is almost like they were trying to avoid showing it for what it is, which is a 5-4 decision. People had spoken that we want as much unanimity in this case, as we can find, and wouldn't it be great if we got a 9-0 opinion, we knew we weren't going to get that. But it was almost like the Supreme Court didn't want to say: Look, this is about as close as you can get. You agree?

MERON: I really think is a little unfair. I mean, I think there's really very little down, when you look at all the opinions, where the individuals stand.

VAN SUSTEREN: Dan, we have no idea who stands on this per curiam.

MERON: That's not true.

COSSACK: You do know, but the fact they don't sign on and make it a 5-4, and put in a per curiam to give a sort of a sheen, if you will, of something that it is not.

VAN SUSTEREN: But some people may think it's a 7-2 because you have two dissents. I mean, technically.

COSSACK: It is not like we are giving baseball scores.

VAN SUSTEREN: I mean, technically, do you know if it's 5-4 or a 7-2?

MERON: I mean, it is 5-4, in terms of the entity of the per curiam, because two of the justices who thought it was an equal protection violation would have given Florida basically six more days to do a recount.

COSSACK: And two of them said...

VAN SUSTEREN: That was on remedy.

COSSACK: That's the 5-4.

MERON: Greta, that's why I think this is actually a fairly -- I think one of the most important things about this opinion, and I think it is encouraging that at least there were seven justices who agreed on a lot, and they agreed pretty much on most of the per curiam except those last two paragraphs.

VAN SUSTEREN: Then sign up for it. Put your name on the bottom line.

COSSACK: Sit back. I've got to take a break. When we come back, the U.S. Supreme Court remanded this case to the Florida Supreme Court. What's next in Tallahassee, if anything? Stay tuned.


Timothy McVeigh, convicted in the Oklahoma City bombing, has decided to end his appeals over his conviction and death sentence. McVeigh wants to be executed within 120 days.

The U.S. district judge who presided at McVeigh's trial could decide to approve the request, reject it or order a competency hearing first.



VAN SUSTEREN: Good news for our Internet-savvy viewers. You can now watch BURDEN OF PROOF live on the World Wide Web. Just log-on to We now provide a live video feed, Monday through Friday, at 12:30 p.m. Eastern time. If you miss that live show, the program is available on the site at any time via video-on-demand. You can also interact with our show and even join our chat room.

COSSACK: In its decision, the U.S. Supreme Court overturned a ruling on recounts of so-called undervotes. The case of Bush versus Gore was remanded to the Florida Supreme Court. Last night in Tallahassee the court clerk worked late, distributing copies of the U.S. Supreme Court rulings to Florida's high court justices.

Well, Justice Kogan, they now get this opinion from the United States Supreme Court that says, listen, if you have about 15 minutes left and you can come up with a way to count the votes, go ahead. But if you can't, we are sorry. What is there to talk about from the Florida Supreme Court?

KOGAN: There's really nothing to talk about. As a matter of fact, somewhere along the line this morning, I heard that the Florida Supreme Court asked the parties whether or not they wanted to file anything in regards to last night's opinion. I don't know whether or not anything has been filed. I doubt it, in light of the Bush -- not Bush, Gore's camp's response, let's suspend everything until later on today.

COSSACK: Well, Justice Kogan, the Florida Supreme court, after the hearing, filed some documents, saying that on a 6-1 vote that we really based our decisions on state law. Apparently the United States Supreme Court just didn't buy into it.

KOGAN: Well, you know, it is very interesting because when you read all three opinions put out by the Florida Supreme Court: the first one, when they extended the deadline date; the second one, when they called for the recount; and then the one they filed yesterday afternoon, when you read those, it is very, very obvious, to mr anyway, that they were saying: Look, we are following Florida case law -- not case law, Florida law in regards to interpreting the statutes.

Now, when it came to setting a standard by which to judge the ballots, they enunciated the standard that is set out in the statute, and that is the intent -- whatever manifests the intent of the voter -- that is to be counted as a vote.

Now, the United States Supreme Court apparently says, well, you had to have had standards. But if they went ahead and they set standards, what clearly would have happened is, they then would have been accused of making law and not interpreting the statute.

VAN SUSTEREN: Which is sort of interesting because I think it was Justice Breyer, in the oral arguments -- and Teresa, correct me if I'm wrong, because you were sitting next to David Boies at counsel table in the Supreme Court -- but I think it was Justice Breyer who said: What about sending it back down to the circuit court judge and having him, Judge Lewis, solicit a letter from the secretary of state as to what should be the standards; am I right, Teresa?

ROSEBOROUGH: That was exactly what happened. I think there was a lot of concern court about who gets to set the standards, if we decide a standard should be set. And this opinion basically says that the Florida Supreme Court could have set the standards itself, although I think that Justice Kogan is correct, had they done so, they would have immediately been accused by the Bush camp of setting new law, and ruining the opportunity for Florida to get its electors selected within the safe harbor.

VAN SUSTEREN: All right, well, let's talk about another case that may soon be hitting the headlines, and that involves the "Miami Herald." We are joined by Martin Baron, who is the executive editor of the "Miami Herald,"

Martin, you have a lawsuit filed to get those ballots so you count them yourself, am I right?

MARTIN BARON, EXEC. EDITOR, "THE MIAMI HERALD": Yes, you are right about that.

VAN SUSTEREN: What's the status?

BARON: We received a court order granting us access to these ballots, and if we don't have them by tomorrow, the county of Miami- Dade is required to show cause as to why they are not providing them to us.

VAN SUSTEREN: Do you expect to get them tomorrow? What are you going to do with them?

BARON: I'm not sure we expect to get them tomorrow because these ballots of course are in Tallahassee.

COSSACK: What standard are you going to use in counting these ballots, and are you going to be changing the law like they said the Florida legislature -- the court did?

BARON: Well, of course, we don't intend to change the law nor do we have the power to do so, but what we plan to do is to examine the ballots and describe what it is we see, and categorize these ballots. If there is a ballot that has simply an indentation, we would show how many have that, how many have a puncture in only one portion of the chad, of the hole, how many might have two or three or what have you, and describe these ballots. And then people can draw their own conclusions about whether this is a vote or not a vote, and we can say that, according to the standard that was used in Palm Beach County, there were X number of votes; and if the standard that Broward County used, there would have been a different number of votes.

VAN SUSTEREN: Marty, have you asked to see the ballots throughout the entire state or are you limiting it to Palm Beach or and Miami Dade or any other counties?

BARON: What we've done to date is ask in Miami-Dade, but we are actually asking throughout the state every county, we are now in the process of asking for the ballots in every county, where there were undervotes.

COSSACK: How long do you think this is going to take, Marty?

BARON: I wish I knew. We are going to try to do it as quickly as possible, and we will see. We may do it in collaboration with other newspapers.

COSSACK: You know how long it will take?

BARON: I really don't know. VAN SUSTEREN: I am just curious, before I let you go, Marty, what time is your hearing tomorrow if they don't give you the ballots?

BARON: The last I heard, our hearing was at 9:45 in the morning.

VAN SUSTEREN: All right, Marty Baron, executive editor of the "Miami Herald," thanks for joining us.

Up next, December 12th, 2000 will go down as one of the most historic dates in U.S. Supreme Court history. But will the legacy of Bush versus Gore haunt the court's judicial integrity and taint its ivory tower image? Stay with us.


Q: Six suspects in the USS Cole bombing are set to go on Trial in Yemen next month. The USS Cole arrived in Mississippi today for repairs that are expected to cost how much?

A: Repairs are expected to cost at least $170 million and take about a year to complete.



VAN SUSTEREN: You are looking at some tape. It is Governor George W. Bush, it was shot a few moments ago, he is leaving the capitol in Austin, Texas. We've also learned that President Clinton has spoken to Vice President Al Gore earlier this morning. President Clinton is in Ireland, and we don't know what they said in the conversation, but they have spoken.

We are going to go back to our discussion in a moment. Governor Bush is going to come to the microphone. Listen to what the governor has to say. Obviously, Governor Bush is a happy man after the decision from the United States Supreme Court last night, a per curiam decision, which it was determined that the hand count in the state of Florida was unconstitutional, that it violated the Equal Protection Clause because the undercounted votes and overcounted votes -- the votes were counted differently.

QUESTION: What time tonight, sir, will we hear from you later?

QUESTION: Have you heard from the vice president, sir.

GOV. GEORGE W. BUSH (R-TX), PRESIDENTIAL CANDIDATE: Not yet. Nice to see you all.

QUESTION: Did you read the Supreme Court decision?

QUESTION: Have you talked to your parents, governor?

BUSH: I talked to them. I did. I talked to them this morning. I woke them up.

QUESTION: What did they say, sir?

BUSH: Thanks for the wake-up call.

VAN SUSTEREN: I'm sure that, not only thanks for the wake-up call, but probably very proud former President Bush of his son, Governor Bush, who won in the Supreme Court last night.

Let me go back to you, Teresa, and let's talk about the Supreme Court. As always, in controversial decisions, there's a lot of criticism. How does the Supreme Court weather that criticism?

ROSEBOROUGH: Well, I think that the enduring message of our history is that the Supreme Court has issued controversial decisions in a lot of different contexts over time, and even decisions that we all know today, by our moral standards, are demonstrably wrong, like Plessy v. Ferguson. And the institution still survives because we have decided. We have made a pact in this country that we will respect that court and abide by its instructions, even if we are firmly convinced that they are incorrect.

And I think that pact will endure -- will get us through this crisis and these uncertainties, and it will allow our republic to continue with a lot of dignity. The thing that makes us different from a lot of countries is that we do have institutions that can be wrong and can be incorrect, and we can disagree with them, but we still adhere to a pact of governance.

VAN SUSTEREN: What is sort of the beauty of it is that we have nine people making the decision. So it is like a jury.

COSSACK: Dan, let me just follow-up. Everything Teresa of course says is correct, but that doesn't mean that we pundits don't get to criticize this opinion a little bit.

VAN SUSTEREN: That is a free democracy.

COSSACK: For example, one of the things that the Supreme Court held was that the county-to-county standard would violate equal protection, without any relevant citations as to tell us why it would be violating equal protection. Now doesn't that open up the Supreme Court to be a little -- for people like me to come in and say, hey, wait a minute, if I was -- if someone else came in there, a liberal came in there and made this kind of gross assumption, you wouldn't stand for that for a second, and yet on this, you just sort of take it.

MERON: I think in fairness, Roger, there were seven votes, seven justices, including Justice Souter and Justice Breyer agreed that the absence of any standards was a violation of equal protection. I think Justice Souter put it well. He said, look, under any standard of review, no matter how closely you look at it, where you've got two identical ballots, everything else is the same, and in one county that counts as a vote, in another county it doesn't, there's no legitimate basis for treating them differently.

VAN SUSTEREN: It is a good argument, in many ways, obviously a convincing one to the Supreme Court, but when you actually sort of step back, you know, seven people might think, indeed, there was a standard that we assign the job to, in this case, in a contest proceeding to a county judge who then determines the voter's intent, and that we give that person that job. You know it just basically decides who gets to makes the decision.

COSSACK: What if there was 67 different standards, but they were all reasonable, what would be wrong with that? I mean, unless there was just one that was just totally off the wall, but 67 counties said, you know, one said we are going to count dimples; one said we are not going to count dimples. Taking care of their own county, and they were all reasonable. What would be wrong with that?

MERON: What is wrong with that is you are doing a statewide vote, and essentially it would make the result random, it would just depend on who -- which standard happened to be used in more counties, and how that worked out. I mean, you looked at Broward and you looked at Palm Beach, roughly the same -- population were similar, both were heavily Democratic. The number of votes that Al Gore picked up in Broward were far greater than in Palm, and that was only because of a standard. The standard makes a lot of difference.

VAN SUSTEREN: Justice Kogan, can you envision a solid decision that would have come out a different way, if it would be intellectually honest?

KOGAN: Well, my overall opinion is that the Supreme Court of the United States did not do us a favor by even taking this case to begin with. I think, basically, no matter how you look at this decision, it has come down 5-4 because the final issue involved is whether or not the counting or the recount should continue. Five have said it should not, four say that it should. That makes it final, and no matter what happens to be in the opinion, really is superfluous at this point, because the American people are looking at the end result, and the end result simply is that when you stop the counting, as the majority of the court said, that's it -- it's over for Vice President Gore.

VAN SUSTEREN: I guess that's why they call it Supreme.

COSSACK: That's exactly right.

KOGAN: That is right. That is it.

COSSACK: And they will be remembered as the case in which the Florida Supreme Court wanted to have its votes counted and the United States Supreme Court said you can't do it.

That's all the time we have for today. Thanks to our guests, thank you for watching. Today on "TALKBACK LIVE": Is it over for Vice President Gore? What should he say to the American people tonight? Send your e-mail to Bobbie Battista and tune-in at 3:00 p.m. Eastern time.

VAN SUSTEREN: And we will see you tomorrow for another edition of BURDEN OF PROOF.



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